DC Circuit Sides With Verizon, Overturns NLRB Decision in Picketing Dispute

decision in favor of Verizon (Verizon New England v. NLRB, No. 15-1062). "The Board misapplied its highly deferential standard for reviewing arbitration decisions," wrote Judge Brett Kavanaugh in the controlling opinion. The International Brotherhood of Electrical Workers (IBEW), Local 2324, waived its right to picket under a collective bargaining agreement with Verizon, but in a subsequent dispute, employees displayed pro-union signs in cars parked on company property that could be seen by passers-by, Kavanaugh wrote. After Verizon ordered the employees to stop and the union resisted, the telco invoked a clause of the agreement and won an arbitration panel decision. The union took the matter to the NLRB, where an administrative law judge also ruled in favor of the telco. On appeal, the board ruled 2-1 to overturn the decision. The NLRB may review arbitration decisions "in certain circumstances when the losing party says it has been deprived of a right otherwise guaranteed by the National Labor Relations Act," wrote Kavanaugh, but such reviews are conducted under the "highly deferential" Spielberg-Olin standard. "Under that standard, the Board should have upheld the arbitration decision in this case. The Board acted unreasonably by overturning the arbitration decision. Therefore, we grant Verizon’s petition for review and deny the Board’s cross-application for enforcement," said Kavanaugh's opinion, which was accompanied by two other opinions. Judge Karen LeCraft Henderson joined with Kavanaugh on most of the opinion while concurring on two parts. She said she doubted Kavanaugh's description of the arbitration deferral standard. Judge Sri Srinivasan joined, concurred and dissented in part. He said he concurred with the court's explanation of the legal standards. "My sole (and narrow) disagreement with the court concerns the application of that deferential standard in the specific circumstances of this case. In my respectful view, the Board’s decision was not unreasonable in setting aside the arbitration decision," he wrote. Verizon emailed that it's "pleased not just because its position has been vindicated after 8 years of litigation, but also because the Court's decision emphasizes the obligation of the NLRB to defer to collective bargaining agreements and the use of the arbitration process to resolve disputes that arise from time to time under those agreements." The NLRB and IBEW didn't comment.